U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Mafalda H.,1 Complainant, v. Kirstjen M. Nielsen, Secretary, Department of Homeland Security (Transportation Security Administration), Agency. Appeal No. 0120170996 Agency No. HS-TSA-23946-2015 DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency's December 2, 2016, final decision concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission REVERSES the Agency's final decision. ISSUE PRESENTED The issue presented is whether the Agency properly found that Complainant did not show that she was not promoted because of her sex or age. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Senior Federal Air Marshal at the Agency's Pittsburgh, Pennsylvania Field Office (PIT). Complainant has been a Federal Air Marshal (FAM) since 2002 and previously worked as a Federal Police Officer for the Federal Bureau of Investigation (FBI) for more than six years. From February 5, 2015 to February 15, 2015, the Agency advertised for the position of Transportation Security Inspector within the Surface Unit (TSI-S), SV-1801-G, Vacancy Announcement PIT-15-862520. This position mainly involves conducting regulatory inspections/investigations and supporting criminal investigations related to alleged or suspected security clearance violations; identifying, collecting, and preserving evidence used to support law enforcement actions; providing testimony and participating in enforcement proceedings; responding to threats, violations, and potential violations and security incidents; and participating in activities designed to identify security threats. On or about February 5, 2015, Complainant applied for the position. The Agency's Human Resources Department deemed Complainant and six other candidates qualified for the position and interviewed them for the position. Complainant and the other applicants were interviewed by a three-person panel that consisted of a male born in 1974 (P1), a male born in 1956 (P2), and a male born in 1958 (P3). The panelists individually scored and ranked the candidates based on the interviews, and ultimately, combined the scores to produce an aggregate ranking of the candidates. The ranking was then submitted to the selecting official (SO),2 who chose the top-ranked candidate (S1), a male born in 1982, for the position. On July 8, 2015, Complainant filed an EEO complaint in which she alleged that the Agency discriminated against her on the bases of sex (female) and age (born in 1973) when she was not selected for a Transportation Security Inspector-Surface (TSI-S) position. In an investigative statement, Complainant stated that she believed she was not selected because of discrimination based on the fact she had 19 years of experience with investigations and inspections; the selection panel did not seem interested in what she said during the interview; the selection panel was all-male; and S1 did not have the experience or education that she has and is a younger male from the all-male Surface Inspection Unit. Complainant further stated that she believed that age was factor in her nonselection because the Agency was able to hire someone younger at a lower salary than what it would have paid her. After the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). In accordance with Complainant's request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to unlawful discrimination as alleged. CONTENTIONS ON APPEAL Complainant does not present any arguments on appeal, and the Agency requests that we affirm its final decision. STANDARD OF REVIEW As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law"). ANALYSIS AND FINDINGS Generally, claims of disparate treatment are examined under the tripartite analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Foundation for Experimental Biology. Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976). For a complainant to prevail, she must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). Once a complainant has established a prima facie case, the burden of production then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to the complainant to demonstrate by a preponderance of the evidence that the Agency's reason(s) for its action was a pretext for discrimination. At all times, the complainant retains the burden of persuasion, and it is her obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks. 509 U.S. 502, 519 (1993); U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711.715-716 (1983). In this case, Complainant is a female born in 1973. She applied for and was deemed qualified for the TSI-S position. Additionally, a male born in 1982 was selected for the position. Thus, we find that Complainant established a prima facie case of sex and age discrimination. Nevertheless, we find that the Agency provided legitimate, nondiscriminatory reasons for not selecting Complainant for the position. Specifically, P1 indicated that Complainant was ranked last because she failed to provide outcomes to situations presented by the interview panel. P2 stated that Complainant answered questions briefly with "little details" on many of her responses. He further stated that regarding the optional technical question, Complainant answered competently but lacked detail. P3 stated that Complainant was rated last because, at times, she did not understand the question or did not have relevant answers to them. Complainant maintains that she possessed superior qualifications for the TSI-S position. The record reveals that Complainant has been a Senior Federal Air Marshal with the Agency since July 2002. Complainant previously worked as a Federal Police Officer for the FBI from March 1996 until July 2002, and collaterally served as an Assistant Supervisory Federal Air Marshal, Operations/Intel Officer, Field Officer Focus Group Representative, Temporary Training Instructor, Special Mission Team Leader, and International Mission Team Leader. Additionally, Complainant has a Bachelor's Degree in Criminal Justice (2001) and had completed substantial work on a Master's Degree in Organizational Leadership at the time of the interview. The record reveals that S1 began his career with the Agency in December 2013 as a part-time Transportation Security Officer. During the relevant time period, S1 had worked for the Army National Guard as a Plans Officer and Headquarters Company Commander for over three years; a Senior Military Science Instructor for four months in 2013; and Intelligence Analyst from May 2010 until January 2012. From September 2006 until March 2009, S1 was in the U.S. Army, where he worked as a Military Intelligence Trainer and Intelligence Analyst. Upon review, we note that Complainant had been a Senior Federal Air Marshal with the Agency for almost 13 years, whereas the S1 had only been a part-time Transportation Security Officer and worked for the Agency for somewhat over year. Additionally, Complainant previously worked in law enforcement with the FBI as a Federal Police Officer. In contrast, S1's previous experience was in the military and National Guard, not civilian law enforcement. Further, Complainant had a relevant Bachelor's Degree in Criminal Justice, whereas there is no indication in the record that S1 had a college degree. As such, we find that Complainant possessed qualifications for the TSI-S position that were plainly superior to S1's qualifications. Hung P. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120141721 (Dec. 3, 2015) (complainants may demonstrate pretext for discrimination by showing that their qualifications for a position were plainly superior to those of the selectee.). Additionally, we note that P1 maintained that Complainant was not selected because she failed to provide outcomes to situations and actions taken, and P2 asserted that Complainant "answered briefly with little details." P3 stated that Complainant was rated last because she did not understand the question or did not have relevant answers to them. However, these explanations are suspiciously thin and vaporous and not supported by the record. The panelists did not specify what Complainant purportedly said that did not provide outcomes to situations, were too brief, was irrelevant, and lacked detail, nor did panelists specify how she should have answered to receive a higher ranking. Moreover, the interview notes do not reflect that Complainant's responses were deficient. Instead, P1 noted that during the interview, Complainant was "clear-spoken," "grammatically correct," and "succinct," and P2 reported that Complainant was "engaging" and "clear."3 We note that another candidate for the position (C1) noted that the Surface Inspection Unit at PIT has seven or more Inspectors, and they are all male. C1 further reported that all the new hires for that Unit have been males younger than 40 years old. The record confirms that all seven TSI-Surface employees were male during the relevant time period, although four of these employees were over 40 years old. In light of the aforementioned, we find that the Agency's explanations for Complainant's nonselection are unworthy of belief and pretext for age and sex discrimination. Therefore, we find that the Agency erred in finding that Complainant did not prove she was subjected to unlawful discrimination. CONCLUSION Accordingly, based on a thorough review of the record, we REVERSE the Agency's final decision and REMAND this matter to the Agency for further action consistent with this decision and the ORDERS set forth below. ORDER Unless otherwise indicated, the Agency is ordered to take the following remedial action within one hundred and twenty (120) days of the date this decision is issued: 1. The Agency shall offer to retroactively appoint Complainant to the position of Transportation Security Inspector within the Surface Unit (TSI-S), Pittsburgh, SV-1801-G, effective the date of the appointment of S1 (reportedly May 31, 2015). Complainant shall be given a minimum of 30 calendar days from receipt of the offer within which to accept or decline the offer. Failure to accept the offer within the time period set by the Agency will be considered a rejection of the offer, unless Complainant can show that circumstances beyond her control prevented a response within the time limit. 2. The Agency shall determine and pay Complainant back pay (with interest, if applicable) and other benefits due Complainant pursuant to 29 C.FR. § 1614.501, no later than sixty (60) calendar days after the date this decision becomes final. The Agency's determination shall be based on the fact that, absent discrimination, Complainant would have been selected for the TSI-S position in or about May 31, 2015, and subsequently would have received all career ladder promotions to which an employee who performed in a fully successful manner was entitled. If Complainant declines to accept the promotion with the Agency, the back pay period for the TSI-S position shall end on the date she declines the offer of promotion. If there is a dispute regarding the exact amount of back pay and/or benefits, the Agency shall issue a check to Complainant for the undisputed amount within sixty (60) calendar days of the date the Agency determines the amount it believes to be due. Complainant may petition for enforcement or clarification of the amount in dispute. The petition for clarification or enforcement must be filed with the Compliance Officer, at the address reference in the statement entitled "Implementation of the Commission's Decision." 3. The Agency shall also pay compensation for the adverse tax consequences of receiving back pay as a lump sum. Complainant has the burden of establishing the amount of increased tax liability, if any. Once the Agency has calculated the proper amount of back pay, Complainant shall be given the opportunity to present the Agency with evidence regarding the adverse tax consequences, if any, for which Complainant shall then be compensated 4. The Agency shall conduct a supplemental investigation pertaining to Complainant's entitlement to compensatory damages under Title VII (but not the ADEA) incurred as a result of the Agency's discriminatory actions in this matter. The Agency shall issue a final decision determining Complainant's entitlement to compensatory damages within 120 calendar days after this decision is issued. 5. The Agency shall provide eight (8) hours of in-person EEO training to P1, P2, P3, and SO. The training shall focus on management's responsibilities to prevent age and sex discrimination, as well as reprisal under EEO laws. 6. The Agency shall consider taking appropriate disciplinary action against P1, P2, and P3. The Commission does not consider training to be disciplinary action. The Agency shall report its decision to the Compliance Officer. If the Agency decides to take disciplinary action, it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. If P1, P2, and P3 have left the Agency's employ, the Agency shall furnish documentation of their departure date(s). 7. The Agency shall post a notice in accordance with the Order set forth below entitled "Posting Order." The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation verifying that the corrective action has been implemented. POSTING ORDER (G0617) The Agency is ordered to post at its Pittsburgh facilities copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision was issued, and shall remain posted for 60 consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer as directed in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period. The report must be in digital format, and must be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). ATTORNEY'S FEES (H1016) If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), she is entitled to an award of reasonable attorney's fees incurred under Title VII in the processing of the complaint. 29 C.F.R. § 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of the date this decision was issued. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. § 1614.501. IMPLEMENTATION OF THE COMMISSION'S DECISION (K0618) Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission's corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency's final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tend to establish that: 1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or 2. The appellate decision will have a substantial impact on the policies, practices, or operations of the Agency. Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). The request or opposition must also include proof of service on the other party. Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c). COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0610) This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. Filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden's signature Carlton M. Hadden, Director Office of Federal Operations July 27, 2018 __________________ Date 1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website. 2 SO is a male born 1967. 3 We note that P1 also reported that Complainant exhibited "some hesitation" during the interview, but P1 does not maintain that this was a factor in ranking Complainant last. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120170996 9 0120170996